Salem v The General Medical Council [2017] EWHC 840 (Admin)

Case No CO/3398/2016[2017] EWHC 840 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12/04/2017
Before
MR JUSTICE DOVE
Between
SHARAF SALEMAppellantTHE GENERAL MEDICAL COUNCILRespondent
The Appellant appeared in person for in personRory Dunlop (instructed by The General Medical Council) for RespondentHearing Hearing date: 29 th March 2017
JudgmentMr Justice Dove :Introduction
[1]The appellant appeals under section 40 of the Medical Act 1983 against the decision of the Medical Practitioner’s Tribunal (the “MPT”) of 1st June 2016 imposing the sanction of erasure upon him. The brief procedural history of this matter is as follows. A complaint was made to the General Medical Council (the “GMC”) in relation to an incident which occurred at the mental health unit where the appellant was employed on 16th April 2008. That complaint was investigated by the MPT at a hearing commencing on 12th December 2011 and lasting for several days. The appellant did not appear and was not represented at the hearing; the MPT concluded that it was nonetheless appropriate for the hearing to proceed. At the conclusion of the hearing the MPT found allegations proved against the appellant, which are set out in full detail below. The MPT then proceeded to make a further finding that his fitness to practice was impaired as a consequence of the allegations which they had found to be established. They subsequently imposed the sanction of a 12 month suspension on the appellant, and made recommendations in relation to him obtaining evidence as to insight and remediation in order to assist the necessary subsequent review.[2]On 17th February 2012 the appellant appealed against the decision of the MPT to this court. The appeal proceedings were compromised in an order dated 22nd January 2013 and sealed on 18th February 2013 in which, by consent, the appellant’s appeal against the MPT’s decisions reached on 20th December 2011 was dismissed and there was no order for costs. Upon the sealing of the order the suspension of the appellant imposed by the MPT took effect.[3]On 17th January 2014 a review hearing took place before the MPT. The appellant did not produce any of the forms of evidence which had been recommended by the panel in their decision of 20th December 2011, and in his oral evidence contended that his actions on 16th April 2008 were justified and that his fitness to practice had never been impaired in the first place. The findings of the MPT in 2011 were disputed by the appellant. The MPT decided to extend the suspension for a further period of 12 months to enable the appellant to develop and demonstrate insight into what had occurred, and provide a further opportunity to undertake corrective action and furnish evidence of this.[4]A further review occurred on 19th January 2015 at which, again, the appellant disputed the findings of the fitness to practice hearing before the MPT in 2011, and disputed that any of the actions he had undertaken on 16th April 2008 were wrong. The MPT concluded that the appellant had not provided any evidence to them of retraining, reflection or remediation as recommended by the MPT in 2011 and 2014. They concluded that, again, the appellant’s current suspension should be extended for a further 12 months to enable him to have sufficient time to further develop and demonstrate insight into his actions. Again, the MPT recommended the provision of evidence attesting to the steps the appellant had taken to obtain insight into the MPT’s 2011 findings, update his professional skills and knowledge, and demonstrate his good standing in his professional community.[5]On 21st January 2016 a further review was adjourned as a consequence of the appellant’s ill health. On 1st June 2016 a further hearing was held before the MPT at which the appellant explained that, albeit he was retired, he wished to clear his name. He sustained his position that the hearing before the MPT in 2011 had been impaired by the absence of full information. He contended that the conclusions which had been reached by the MPT in 2011 were wrong. The MPT considered, sequentially, whether it would be appropriate to take no action, or to impose conditions upon the appellant’s practice or to continue with his suspension. Having excluded the possibility of taking no action or imposing conditions, the tribunal observed the following in relation to whether or not suspension or, alternatively, erasure would be the appropriate sanction in the appellant’s case:
“13. The tribunal has not heard any new evidence that has not been put before previous panels. There has been absolutely no evidence provided to the tribunal to support any progress that you have made since your most recent hearing in 2015, let alone the initial hearing in 2011. The tribunal noted that your resignation has already been suspended for three consecutive periods of 12 months suspension. The tribunal has taken into account your submissions to it today about the history of your case and the factors which have prevented you from making the progress you wanted to make in relation to your training. 14. The tribunal considered that a global assessment of your case, including matters which have been brought to the tribunals attention today, have left it wholly unconvinced that any progress can be made on a journey to remediation. The tribunal was persuaded that the dismissive way in which you have approached the purpose of this review hearing demonstrates a persistent lack of insight into the seriousness of your actions. The tribunal has reflected on whether your own version of events, as you see them, would allow you to mitigate the tribunals concerns about lack of insight. However, the tribunal has already referred in its impairment determination that there were aspects of the case that you could have addressed in a neutral manner even from your perspective of events. This is demonstrative of a persistent lack of insight into the consequences of what was found proved. 15. The tribunal noted the 2015 panels’ rationale at paragraph 36 and 37: “36. The panel considers that a further period of suspension is appropriate and will protect patients and the wider public interest. It considers that your misconduct is not fundamentally incompatible with you remaining on the register at this time. The panel considered that it would be disproportionate to erase your name from the Medical Registrar (sic). 37. Therefore the panel has determined to extend the current suspension on your registration for a period of 12 months in order for you to acknowledge your failings and begin to engage with the process. It considers that 12 months will give you sufficient time to further develop and demonstrate insight and to take the necessary practical steps towards returning to medical practice.”
This tribunal notes that the 2015 panel was of the view that your misconduct was not fundamentally incompatible with continued registration. This tribunal has decided that the passage of time and inaction on your part has changed matters. That is because no progress has been made in more than three years of suspension. This tribunal has drawn the conclusion that a further period of suspension is futile and would erode public confidence in the profession. 16. Accordingly, the Tribunal has determined that suspending your registration for a further period of time would serve no useful purpose. The tribunal has concluded that there is no real prospect of your undertaking the necessary steps to bring your professional skills up to date, including improving your communication skills. The position is incompatible with continued registration. The tribunal has borne in mind your own personal circumstances as submitted today but has decided that these do not outweigh the public interest in this case that public confidence would be significantly undermined by a further period of suspension. 17. The tribunal has therefore determined that your name be erased from the Medical Register.” “36. The panel considers that a further period of suspension is appropriate and will protect patients and the wider public interest. It considers that your misconduct is not fundamentally incompatible with you remaining on the register at this time. The panel considered that it would be disproportionate to erase your name from the Medical Registrar (sic). 37. Therefore the panel has determined to extend the current suspension on your registration for a period of 12 months in order for you to acknowledge your failings and begin to engage with the process. It considers that 12 months will give you sufficient time to further develop and demonstrate insight and to take the necessary practical steps towards returning to medical practice.”[6]It is against this decision that the appellant appeals. He brings his appeal on two bases. Firstly, he submits that the findings which led to the conclusion that his fitness to practice had been impaired, which were reached in 2011 by the MPT, are unsustainable and wrong. Secondly, he submits that the imposition of the sanction of erasure was harsh and unnecessary and, therefore, also wrong.[7]Prior to the hearing of the appeal the appellant made two written applications for an adjournment based upon his ill health. The first was refused on 16th March 2017 by Mr Paul Gayle (a lawyer in the Administrative Court office) and the second was refused by me on 24th March 2017. The appellant renewed his application for an adjournment before me at the start of the hearing of the appeal. I rejected that application and gave fuller reasons for my decision at the hearing at the time of dismissing it. In brief, I was not satisfied that the medical evidence which was relied upon by the appellant either provided full particulars of the features of his medical conditions which would prevent him from conducting the case, or any prognosis which indicated when he might be in a position to represent himself (see Levy v Ellis-Carr and others [2012] EWHC 63 at paragraph 36).[8]The appellant proceeded to represent himself at the hearing and make full submissions. Facilities were made available to enable him to provide the court and his opponents with the additional documents upon which he wished to rely. At the close of the hearing I explained to the appellant that I understood the misgivings which had given rise to his application to have the hearing adjourned but, having received his full and detailed submissions, I was entirely satisfied that he had been fully able to present all aspects of his case clearly and effectively. Indeed, I am grateful for the helpful and comprehensive submissions that were provided to me, both by the appellant and also by Mr Rory Dunlop, who appeared on behalf of the respondent.

Ground 1: the legal principles and the appellant’s case

[9]It will be apparent from the brief procedural history which has been set out above that the appellant has never accepted the validity of either the proceedings or the findings of the MPT in 2011. The nature of his case is addressed in greater detail below, but for present purposes it suffices to say that the appellant has been consistently of the opinion that the 2011 proceedings did not have complete documentation available for the hearing and, further, that there was no proper criticism which could be made of his actions on 16th April 2008 on the basis that the admission of the patient which is at the centre of the dispute in these matters could never have been lawful.[10]In resisting the reopening of these matters, Mr Dunlop on behalf of the respondent contends that it is now too late for the appellant to seek to disturb the findings and conclusions of the 2011 MPT panel and that the appeal against the MPT’s findings in 2011 is the subject of an issue estoppel preventing the re-litigation of the points which were decided by the MPT in 2011. Mr Dunlop relies upon the decision of the House of Lords in Arnold v National Westminster Bank PLC [1991] 2 AC 93. That was a case which concerned litigation over a lease. In the leading speech of Lord Keith he explained the principles in relation to issue estoppel in the following terms at p108E to 109C:
“It is to be noted that there appears to be no decided case where issue estoppel has been held not to apply by reason that in the later proceedings a party has brought forward further relevant material which he could not by reasonable diligence have adduced in the earlier. There is, however, an impressive array of dicta of high authority in favour of the possibility of this. It was argued for the defendants that exceptions to the rule of issue estoppel should be admitted only in the case of the earlier judgment being a default or a foreign judgment and further that an exception should not be recognised where the point at issue had actually, as here, been raised and decided in the earlier proceedings, but only where the point might have been but was not so raised and decided. The later dicta are, however, adverse to these arguments. It was argued that there was no logical distinction between cause of action estoppel and issue estoppel and that, if the rule was absolute in the one case as regards points actually decided, so it should be in the other case. But there is room for the view that the underlying principles upon which estoppel is based, public policy and justice, have greater force in cause of action estoppel, the subject matter of the two proceedings being identical, than they do in issue estoppel, where the subject matter is different. Once it is accepted that different considerations apply to issue estoppel, it is hard to perceive any logical distinction between a point which was previously raised and decided and one which might have been but was not. Given that the further material which would have put an entirely different complexion on the point was at the earlier stage unknown to the party and could not by reasonable diligence have been discovered by him, it is hard to see why there should be a different result according to whether he decided not to take the point, thinking it hopeless, or argue it faintly without any real hope of success. In my opinion your Lordships should affirm it to be the law that there may be an exception to issue estoppel in the special circumstance that there has become available to a party further material relevant to the correct determination of a point involved in the earlier proceedings, whether or not that point was specifically raised and decided, being material which could not by reasonable diligence have been adduced in those proceedings. One of the purposes of estoppel being to work justice between the parties, it is open to courts to recognise that in special circumstances inflexible application of it may have the opposite result, as was observed by Lord Upjohn in the passage which I have quoted above from his speech in the Carl Zeiss case [1967] 1 A.C. 853, 947.”
[11]In R (Coke-Wallis) v Institute of Chartered Accountants of England and Wales [2011] UKSC 1 the Supreme Court held that the doctrine of issue estoppel applied with equal force in the context of disciplinary tribunals. Thus, it was Mr Dunlop’s submission that unless the appellant could establish that his case came within the exception to issue estoppel established in the Arnold case, Ground 1 was unarguable. He submitted that it would be necessary for the appellant to show that the further material upon which he wished to rely would put “an entirely different complexion on the point”, and secondly, he would have to demonstrate that the material “could not by reasonable diligence have been adduced” in the 2011 proceedings. I accept Mr Dunlop’s submissions in relation to the relevant legal principles which apply. I am satisfied that only if the appellant can bring himself within the scope of the exception provided by Arnold could his appeal in relation to the merits of the 2011 decision be examined.[12]In order to evaluate the arguments in relation to these issues it is necessary, firstly, to consider the issues which were before the MPT in 2011. Secondly, it is essential to examine the further documentation which the appellant seeks to rely upon to demonstrate that the 2011 findings were in error. Finally, the two-fold test from the case of Arnold will need to be applied.[13]The factual context of the proceedings before the MPT in 2011 related to events surrounding the treatment of a patient (“Patient A”) on 16th April 2008. Patient A was a person who the appellant had previously had contact with. It appears from documents that were before the MPT in 2011 that following a referral from her GP the appellant visited Patient A on 6th May 2006. When he attended Patient A he records in a letter of 17th May 2006 to Patient A’s GP that Patient A was denying she had agreed to a visit from him and was unwilling to discuss the circumstances of her case. Following this Patient A’s father telephoned and expressed his displeasure that the appellant had been to visit.[14]There were other encounters between Patient A and mental health professionals which do not have a direct bearing on the issues which happened on 16th April 2008. On that date a “critical” referral was made by her GP to the Goole Integrated Mental Health Team at 9:20 am. The referral contains a description of significant mental ill health being suffered by Patient A. The documentation then records that Nurse Hurson, together with another healthcare professional, visited Patient A at home and interviewed her in the presence of her mother. Whilst initially she would not sign a form consenting to admission to the inpatient unit for assessment (which was the recommendation of Nurse Hurson and her colleague), after further questioning when Patient A was advised that she might need to be sectioned under the Mental Health Act 1983 it is recorded that she agreed to a voluntary admission to the mental health unit at which the appellant worked.[15]At this point significant dispute emerges between the evidence relied upon by the GMC and the appellant’s case. The completed documentation prepared by Nurse Yates (a nurse on duty at the mental health unit on 16th April 2008) states that Patient A was informally admitted as an inpatient at 2 pm. That time is disputed by the appellant on the basis that he believes that this event occurred later than 2 pm. Nurse Yates, in an interview with the Mental Health Trust (the operators of the mental health unit and the employers of the appellant), gave a later time of 2:30/2:40 pm for when Patient A arrived. In a later statement Nurse Yates gave an incorrect date of 18th April 2008 and a still further alternative time of around 4 pm for the events which occurred. Nurse Yates explains in the interview, and also in a witness statement which was later produced as evidence before the MPT when she did not appear as a witness, that when she was preparing the relevant paperwork she was confronted by the appellant asking her what she was doing, and when she explained the situation she says that he became very angry and started spitting when he spoke. She says that he was complaining that he knew nothing about the admission of the patient and that he was not prepared to accept responsibility for the patient. Nurse Yates says he told her to get the Community Mental Health Trust (the “CMHT”) staff, including Nurse Hurson, to come and talk to him. In her account of what happened next, Nurse Hurson stated that she and her colleague went to the appellant’s office and that he was quite angry about not being informed that Patient A was coming into the unit, and that he had not agreed to the Mental Health Trust’s Gate-keeping procedure and refused point blank to provide any care for Patient A. The appellant’s position was not accepted by Nurse Hurson and her colleague.[16]Along with the appellant, Dr Patel, a Senior House Officer who was in training, was also conducting a clinic at the mental health unit. When she finished her clinic Dr Patel encountered Patient A. She could see that Patient A was exhibiting significant symptoms of mental ill health, and shortly afterwards Patient A absconded from the mental health unit, passing through the kitchen and escaping outside. Dr Patel went out to speak to Patient A who had ended up in the car park, and after 40 to 45 minutes of speaking to Patient A, Dr Patel was able to persuade her to return to the mental health unit. At that point she sought out the appellant, and Dr Patel states in her account that the appellant said that she should have just let Patient A run away. Dr Patel indicated to the appellant that she was contemplating holding Patient A under section 5(2) of the 1983 Act. When Dr Patel told the appellant this, the appellant said that she didn’t need to do that. Dr Patel queried that suggestion on the basis that Patient A was clearly unwell; they then discussed what dose of the medication Dr Patel was intending to prescribe for her should be administered. Dr Patel then completed the paperwork for Patient A, including that necessary for holding her under section 5(2) of the 1983 Act.[17]The report in relation to the holding of Patient A under section 5(2) of the 1983 Act was completed at 5 pm. It appears from the documentation that at 4.27 pm that afternoon a memo was sent from Dr Gee, the medical director to whom the appellant was responsible, to the appellant in the following terms:
“SUBJECT: Patient Admitted this afternoon through Goole CMHT I understand that a female patient has been admitted to Bartholomew House through the Goole CMHT gate-keeping process which has been agreed by the Trust. I further understand that you are refusing to take on consultant responsibility for this patient. I have been informed that this is a patient who resides in the Goole area and that you are the consultant responsible for managing in-patients at Bartholomew House. I must, therefore, remind you that you have a professional duty of care and would ask that you immediately take on consultant responsibility for this patient. If you feel that you are not able to do this I would ask that you get back in touch with me today as a matter of urgency.”
[18]The appellant responded at 4.45 pm in the following terms:
“Dear Dr. Gee, Regarding patient admitted this afternoon. The patient was admitted to Bartholomew House without any consultation with me. I was available. As regards the gatekeeping I have not agreed to that. It is not in my job plan and I shall not take responsibility for this patient. Your gatekeeping plan has not been discussed with me and I have not agreed to it and the staff have not followed the proper procedure and I do not think that this lady needs to come into hospital. I am writing to confirm that I will refuse to take responsibility for this patient. Dr. Salem”
Dr. Salem”[19]Subsequently, Patient A was detained pursuant to section 2 of the 1983 Act and ultimately, following treatment as an inpatient, Patient A discharged herself from the mental health unit on 20th May 2008.[20]Following a complaint made to the GMC, allegations were laid against the appellant. Those allegations were amended during the course of the proceedings and the final allegations which were considered in 2011 by the MPT as amended were as follows: “That being registered under the Medical Act 1983, as amended: 1. Between February 2007 and September 2009 you were employed as a Consultant Psychiatrist by Humber Mental Health Teaching NHS Trust (the ‘Trust’); 2. On 16April 2008 Patient A was presented to Bartholomew House, Goole by the Community Mental Health Team for the purpose of an admission; 3. Youa. Were the Consultant responsible for managing in-patients at Bartholomew House,b. Were aware that Patient A was psychologically vulnerable at the point of her arrival at Bartholomew House, 4. You did not a. Examine Patient A, b. Conduct any health assessment of Patient A,c. Adequately consider the request by the Community Metal Health Team to receive Patient A,d. Adhere to he Trust ‘Gatekeeping’ policy regarding the admission of psychiatric patients,e. Provide advice or guidance to a first year GP trainee, Dr Amisha Patel, about Patient A when asked to do so,f. Supervise or assist Dr Patel in her assessment of Patient A; 5. You a. Refused to take clinical responsibility for Patient A, b. Took the view that admission was unnecessary without having examined or assessed Patient A, c. Left the unit on 16 April 2008 knowing that Patient A had not been examined or assessed by you. And that by reason of the matters set out above your fitness to practise is impaired because of your misconduct.” a. Were the Consultant responsible for managing in-patients at Bartholomew House, b. Were aware that Patient A was psychologically vulnerable at the point of her arrival at Bartholomew House, a. Examine Patient A, b. Conduct any health assessment of Patient A, c. Adequately consider the request by the Community Metal Health Team to receive Patient A, d. Adhere to he Trust ‘Gatekeeping’ policy regarding the admission of psychiatric patients, e. Provide advice or guidance to a first year GP trainee, Dr Amisha Patel, about Patient A when asked to do so, f. Supervise or assist Dr Patel in her assessment of Patient A; a. Refused to take clinical responsibility for Patient A, b. Took the view that admission was unnecessary without having examined or assessed Patient A, c. Left the unit on 16 April 2008 knowing that Patient A had not been examined or assessed by you.[21]At some point which is not clear from the papers, but prior to the MPT hearing, the appellant provided the following explanation of his own account of what had happened on 16th April 2008:
“To whom it may concern; On Wednesday the 16th of April 2008, when I arrived at Castle hill hospital at approximately 12:50pm, my secretary was not in but Joyce was covering for her. She told me that there was a call from CMHT about a patient who needed admission. I asked her to call the team and tell them that I was in my office if they wanted to speak to me. A member of the team who contacted my office was not there and I was told that they were going to contact her to let her know I was at baths house. I waited but nobody contacted me, then I had a clinic at 2pm in my office at baths house. Nearly 2 hours later I learned that the lady had arrived for admission. I was surprised because nobody had contacted me regarding the assessment or the admission. At around 3pm I was collecting notes from my secretary’s office, Nurse Yates was standing in the corridor having a conversation with my secretary, I over heard her saying that she is preparing to admit this lady, but she escaped through the kitchen. I told the nurse that she could not admit this patient informally and that she needed an assessment under the mental health act before admission. I carried on with my clinic and about half hour later Nurse Clark and Mrs. Cooper from CMHT came to see me and told me that the patient was admitted, I asked why they had not consulted with me especially in view of the fact that this lady had escaped through the kitchen, and I had been in bath house since 12:50om. Nurse Clark thought that this was ridiculous, stating that the patient was admitted under the gate keeping protocol. They left my office and I continued with my clinic. I learnt later that the patient was put on Sec 5(2) by SHO without consultation with me. Doctor Patel is a trainee and she had been under my supervision for a few weeks, she is not qualified to section patients especially in my presence. Dr Patel came to see me in my office at 6pm asking about medication for this lady, when I asked her firstly who instructed her to admit this lady informally and second to put her in sec 5(2). She refused to answer me and left my office before I could explain to her the protocol. Dr Gee asked me to take responsibility of a patient admitted against her wish and illegally sectioned. I have never been at any time requested to see this patient by any member of the CMHT team or in patient team or her GP for that matter: I was asked not to discuss this matter with anyone during the investigation and during our meeting in May 2008 I tried to explain why I refused to see this patient but I was stopped by the personal officer, saying that I could explain that during the investigation.”
[22]Further information in relation to the appellant’s case was provided to the GMC within a letter he wrote to them on 15th March 2011 as follows:
“Both the community team and the ward nursing staff were pre-occupied with gate-keeping policy. This case has nothing to do at all with gate-keeping policies. It was a case of a patient who did not consent to informal admission. Although she was brought to the unit by community staff she refused admission and escaped out of the kitchen window. Contrary to my advice of her need to be formally assessed under the MHA, the staff returned Patient A to the unit and admitted her informally???? This in my view is unlawful detention, which is punishable under criminal law. My advice to the nursing staff was based on the fact that she was unwilling both on that occasion and on previous occasions (in 2006 – the records of which have not been provided by the Trust) to be admitted informally. The claim by the community mental health team, that they had tried to contact me, and I was not available is not true. I returned on that day fro a teaching session in Castlehill Hospital at 12.50pm and I asked Mrs. Joyce Harrison, who was covering my secretary that morning, to contact the community mental health team to inform them I was at Bartholomew House if I was required. No one contacted me and at 2pm before I started my clinic I enquired of the ward if I was needed for anything. I was informed that they were expecting someone for admission but that she hadn’t arrived. ALL the documentation for this patient was timed for 2pm!!!! I am quite sure that patient A did not arrive until after 2.30pm. Another point I would like to make is the issue of sectioning her under the MHA and applying Sec.5(2) instead of 5(4) (nursing holding power). The nursing staff should have known that Sec.5(2) is an emergency act which can only be applied by the RMO or his nominee at the time of the incident. The RMO (myself) was in the clinic. He was not consulted at all. Dr Patel is not a nominee in this situation. Even if she was, she should have consulted either myself or the Consultant on call in my absence before applying the section, not after. The SHO cannot complete Form 14 MHA. This is usually done by the Manager of the ward or the nurse in charge. According to the records, Nurse Yates was too busy to do this I would appreciate if Dr Gee would provide the complete notes for this patient and read carefully the witness statements to see if they concord with one another. I have asked Dr Gee on many previous occasions for the records and other information regarding the hearing, but he was not forthcoming.”
[23]From the documentation it appears that on 20th June 2011 a Mr Hudspith, an investigation officer at the GMC, was confirming by email an earlier telephone conversation with the appellant in which the appellant was seeking a full set of medical records for Patient A, and also the report of the Trust’s investigation of a complaint made by Patient A prior to the admission against the appellant. On 29th June 2011 the appellant chased the production of this documentation and this was acknowledged by Mr Hudspith in an email dated 1st July 2011. A telephone conference occurred on 27th September 2011 in which representatives of the GMC participated. During the course of the conference the appellant complained about the failure to produce the patient notes. The note of the telephone conference provides as follows:
“GMC made final disclosure on 5 September 2011 including the draft charges and outstanding statements. GMC advised that there is evidence which Dr Salem seeks and has asked the GMC to obtain it on his behalf. This is the medical records of the patient whose treatment forms part of the charges. GMC have made efforts to obtain these records but Dr Gee has advised them that the medical records are not available as he is not able to identify the patient. GMC confirmed that this is not evidence they are relying on themselves.”
GMC confirmed that this is not evidence they are relying on themselves.”[24]The appellant did not attend the hearings of the MPT which commenced on 12th December 2011. In short the MPT heard evidence from Nurse Hurson and Dr Patel and then accepted evidence in the form of Nurse Yates’ statement and received expert evidence from a Dr McEvedy. They concluded that all of the allegations set out above were proved and on the basis of those factual findings, proceeded to consider whether or not the appellant’s fitness to practice had been impaired and, as set out above, having concluded that it had been impaired they proceeded to impose a sanction of 12 months suspension coupled with recommendations as the evidence of insight and remediation which should be obtained for the purposes of any review of the appellant’s case.[25]Having set out the issues which were before the MPT in 2011, the resolution of which underpinned their findings of fact, I turn then to the second issue, namely the nature of the documentation which the appellant has produced in this appeal and which forms the basis of his contention that issue estoppel should not bite in the present case. The first of the documents is a letter dated 21st July 2006 which is a response from the Chief Executive of the Mental Health Trust in relation to a complaint made by Patient A in early summer 2006.[26]It appears that following the home visit on 6th May 2006 by the appellant, when Patient A did not wish to speak to him, her GP once again contacted the appellant, and then attended at Patient A’s home along with the appellant and an approved social worker on 23rd May 2006. Once more, Patient A was unwilling to see the appellant and his colleague and a warrant under section 135 of the 1983 Act had to be obtained. This enabled Patient A to be removed to a place of safety (the mental health unit at which the appellant worked) to enable an assessment to occur.[27]The letter of 21st July 2006 (the first additional document relied upon) is a letter to Patient A addressing a complaint which she had made to the Mental Health Trust in respect of what occurred. In particular, it seems it was a complaint against the appellant and his actions and involvement with Patient A as set out above. The letter dismissed the complaint in the following terms:
“I understand Dr Salem saw you at Bartholomew House for assessment immediately after he had finished his pre-arranged clinic. Following Dr Salem’s assessment you were discharged home as you were not detainable under the Mental Health Act. Dr Salem informs me that you were unwilling to engage with mental health services. I would like to assure you that Dr Salem was aware of why you had been brought to the unit and he informs me that he explained the procedure for carrying out the assessment at the time. I am sorry that you were left distressed by the action taken, however, Dr Salem did have a duty of care to undertake the assessment at the request of your GP. In your letter you state that Dr Salem had informed you that there would be no record kept of the assessment carried out. Dr Salem has informed me that he does not recall saying this to you as he does have a professional responsibility to keep an accurate record of all his appointments with individuals. Please be assured that this information is stored securely and it treated as confidential documentation.”
[28]The second document relied upon by the appellant is a letter dated 23rd December 2008 from Hempsons solicitors. The letter is a letter of advice to the Mental Health Trust. The advice which was requested was as to whether or not in the circumstances which arose on 16th April 2008 the holding power under section 5(2) of the 1983 Act was lawful. It suffices for the purposes of considering the arguments in this case to set out the background upon which the advice was based and the summary of the advice which was provided by Hempsons. I should note, however, for the sake of completeness that the summary of the advice is underpinned by an extensive consideration of the materials in the case which is set out in full in the letter. “Background The service user was on a ward (I am assuming she was admitted but informal) and agitated. It was felt she needed to be assessed with a view to using s5(2) and then assessing for compulsory admission. The available consultant refused to deal with the issue, did not see the service user, did not form any view as to whether section 5(2) should be used or not. A more junior doctor then furnished a report under s5(2) to detain the patient. The junior doctor also received the report on behalf of the hospital managers. The patient was detained, assessed for admissions and admitted under s2 MHA. Following the Trust procedure the paperwork remained on the ward until the s2 documents had been completed and then all the documents were sent to the administration office. Summary of Advice• On the facts I have the junior doctor was entitled to exercise the power under s5(2).• Whether or not the use of s5(2) actually authorised the detention depends on whether the junior doctor was authorised to receive documents on behalf of the hospital managers.• If the receipt of the s5(2) papers was defective there will probably have been a period of unlawful detention, but that period will have ended when the application under s2 was completed.”• On the facts I have the junior doctor was entitled to exercise the power under s5(2).• Whether or not the use of s5(2) actually authorised the detention depends on whether the junior doctor was authorised to receive documents on behalf of the hospital managers.• If the receipt of the s5(2) papers was defective there will probably have been a period of unlawful detention, but that period will have ended when the application under s2 was completed.”[29]The third document upon which the appellant relies is a report from Mr Hood, the Mental Health Legislation Manager of the Metal Health Trust. He had been contacted in November 2008 by the appellant on two occasions when the appellant was raising concerns in relation to the admission of Patient A on 16th April 2008. A summary of the contents of the concerns was set out in the report as follows:
“His initial point was that he, as the consultant psychiatrist for the Goole area had not agreed the above admission of HT. Due to Dr Salem being unavailable to consult on the “critical” referral from HT’s G.P. the CMHT staff had followed the recently introduced Gate keeping Policy and HT had agreed to accompany them to Bartholomew House for informal admission. He made the point as he did not agree with the recently introduced policy he would not follow the instruction, regarding that other clinical staff, in certain circumstances rather than the consultant psychiatrist could admit to East Riding in patient beds. He therefore stated that the informal admission had never been agreed by him and therefore the admission had not happened. He claimed the use of Section 5(2) on this occasion, had been “illegal and unlawful” as this could only be enacted on an informal patient which she the patient was not as he the consultant psychiatrist for the area had not agreed the informal admission.”
[30]It appears from the report that it was these concerns that led to the obtaining of advice from Hempsons and the receipt of their letter of 23rd December 2008 set out above. The report records Mr Hood’s response to the appellant of 30th December 2008 and the appellant’s subsequent response on 14th January 2009, together with Mr Hood’s conclusions in the following terms:
“Mr Hood responded to Dr Salem in writing on 30th December 2008 (appendix 2) stating: “Having received your letter dated 11th December 2011 requesting a formal investigation into the procedure of a Section 5(2) that as implemented on Bartholomew House by a Junior Doctor that was under your supervision and mentorship. I can now confirm that following consultation with the Medical Director, this matter has now been incorporated into the overall investigation that is being conducted in regards to matters appertaining to the issues that occurred on Bartholomew House.”
Dr Salem responded to Mr Hood’s correspondence on the 14th January 2009 (appendix 3). He stated: Thank you for your letter dated 30th December 208, I must say that I am very concerned, it is not a case of Dr Patel acting on her own, she was instructed by the Operational Managers to do what she did against my professional advice, that the patient should not be admitted until the Mental Health Act assessment is carried out. What I also am concerned about is that the managers and nursing staff were involved in a cover-up, falsifying records and making up stories. I requested the Chief Executive to investigate this 3 months ago and nothing has happened, now they are suppressing the investigation by the officer, whose responsibility it is to make sure that the Mental Health Act is not abused and patient rights are respected. I think that you should investigate this unlawful act in respect of other matters. This is a serious matter breaking the law by the Trust.” The acceptance of the Section 5(2) on behalf of Humber Mental Health NHS Teaching Trust was also completed by Dr Patel. Although this is not normal practice within the Trust, the procedure for receipt and scrutiny of Mental Health documentation, procedure check list for forms 14, states that the receiving clinical officer needs to be satisfied that the documentation is correct. Dr Patel completed the form 14 as no member of staff was available due to the nursing staff being involved in the management of the disturbed behaviour of the patient she had just detained.”[31]Having set out this fresh documentation, which it is agreed was not before the MPT when they reached their conclusions in 2011, it is then necessary to address questions, firstly, of whether this material would have put an entirely different complexion on the points which the MPT had to consider and, secondly, whether or not that material could not by reasonable diligence have been adduced before them.[32]Having considered this new material I am entirely satisfied that it does not pass the first test set out in the case of Arnold. When considering this question in respect of each of the documents it is of course of central importance to place them in the context of the allegations which the appellant faced and which have been set out above.[33]Dealing firstly with the letter in relation to the complaint in 2006 the appellant contends that this letter demonstrated that Patient A had an extremely difficult relationship with the appellant and had in the past refused to engage with him as a medical practitioner, and that there was no relationship of trust between them such as would have been necessary for him to engage with her as a patient and with the admission process. In connection with those submissions I accept the response provided by Mr Dunlop and reach the following conclusions. Firstly, this response to the complaint dealt with a matter which occurred at a far earlier time from the matters in question and, importantly, did not conclude that there was any substance in the complaint which had been raised by Patient A. Secondly, the contentions raised by the appellant in respect of this letter do not begin to engage with the allegations which he faced and do not gainsay the substance of those allegations. The letter of 21st July 2006 does not in any way undermine the factual conclusions which were reached by the MPT. I note, in passing, that there was no suggestion in the contemporaneous response provided by the appellant that the incident in 2006 had any bearing upon his actions on 16th April 2008. Thus I am not satisfied that the letter of 21st July 2006 would have made any difference at all to the conclusions of the MPT in relation to the events of 16th April 2008.[34]I turn then to the other two documents relied upon by the appellant which were both generated by the concerns which he had raised with Mr Hood. Again, I am not satisfied that either of these documents would place an entirely different complexion on the points which the MPT decided in 2011. In truth, both the advice from Hempsons and the report prepared by Mr Hood vindicated the position taken by the Metal Health Trust that the admission of Patient A and the action taken under section 5(2) of the 1983 Act was lawful, and that there had not been any illegality in the way in which Dr Patel had proceeded.[35]The appellant draws attention to the factual basis upon which Hempsons advised and refutes that Patient A had been admitted informally. He contends that she could not have been admitted informally on the basis that she did not consent to attending the mental health unit and/or did not have capacity to consent to informal admission. Thus, he contends the advice from Hempsons was based on a false premise and the report which relied upon it was likewise legally flawed. Be all that as it may, and I propose to return to these points below in any event, that contention does not come close to suggesting that had the MPT had access to this documentation it would have placed an entirely different complexion on the questions which they had to consider under the allegations. The documents do not assist the appellant at all in demonstrating that it is clear that his actions on 16th April 2008 were justified and appropriate. If anything, they are against him rather than in his favour.[36]It follows that I am not satisfied that the first test in Arnold is satisfied in this case and therefore as I have explained above this appeal must be dismissed. For completeness, however, and on the basis that I received argument on the points, I do propose to deal briefly with the second test in Arnold and also the submissions made as to the legitimacy of the MPT’s findings in 2011.[37]Dealing, firstly, with the second test in Arnold, namely whether these documents could not by reasonable diligence have been adduced in the 2011 proceedings, I am satisfied that there is substance in the appellant’s case in this respect. It appears to me that in the run up to the 2011 hearings the appellant was consistently requesting disclosure of these documents from the GMC and requiring them to obtain them from the Mental Health Trust. On the basis that the appellant was no longer working for the Mental Health Trust, and the mental health unit in which he had been working had since been decommissioned, these documents were not within his possession or control. All that he could do was request the GMC to insist that the Mental Health Trust to provide them. It is clear that the GMC made efforts to obtain the patient notes and the outcome of the investigation of the complaint in 2006 but, as set out above, they were advised by the Mental Health Trust “that the medical records are not available and Dr Gee is not able to identify the patient”. To my mind that is a very surprising answer in the circumstances of this case, where it is perfectly clear who was the patient who was involved in this incident and, further, should have been obvious from the existing documentation that there had been difficulties with Patient A in 2006, and that there had been an investigation prompted by the appellant in 2008. There is no explanation from the Mental Health Trust beyond this statement and it is difficult to conceive what else the appellant could have done to try to obtain the documentation. Be all that as it may, for the reasons I have explained above, the failure of the Mental Health Trust to provide this documentation to the GMC does not affect the outcome of this appeal.[38]I turn then to submissions which were made in relation to the validity of the conclusions reached in 2011. Of course, strictly speaking, this is not an appeal against the 2011 MPT decision. Such an appeal was raised and discontinued by consent leading to the issue estoppel arguments that I have dealt with. Nevertheless, the appellant made submissions about the 2011 decision. It appears to me from his submissions that he does not necessarily dispute the bare factual conclusions under each of the allegations raised and set out above. His case is that his actions were justified on the basis that the admission of Patient A was unlawful and an abuse of her rights. In particular he contends that Patient A could not have been admitted informally. Firstly he contends that the evidence shows that Patient A was equivocal in relation to whether or not she agreed to coming to the mental health unit and in any event, secondly, she clearly did not have capacity to agree to informal admission. Furthermore this was reinforced by her absconding from the unit during the course of the afternoon of 16th April 2008. Thus he contends that it was quite proper for him to take no part in her admission since her admission and detention was illegal. It followed that the holding of her under section 5(2) of the 1983 Act could also not be sustained.[39]Mr Dunlop responded to these submissions in his skeleton argument. I accept his contention that the matters which are raised by the appellant do not demonstrate that the MPT’s conclusions in 2011 were wrong. Having reviewed the evidence before the MPT, and also the transcripts of the proceedings, it is clear from the evidence in particular of Nurse Hurson that, having explained the position to Patient A, Patient A did consent to coming to the mental health unit and attending it for treatment and that she was able to properly give her consent. Thus, a conclusion that she was, initially, informally admitted was entirely legitimate. Whilst plainly the MPT were not assisted in relation to the appellant’s case by him failing to attend and present evidence and submissions to them, even on the basis of the new material which has been furnished their conclusions remain, in my judgment, unimpeachable. As set out above the advice from Hempsons based upon the fact that Patient A had been informally admitted was entirely valid. Thus, even if that material had been before the MPT it would have simply reinforced their conclusions. The same can be said of the internal report by Mr Hood.[40]Further, even if the MPT had been aware of the complaint in 2006 and the difficulties which had occurred between the appellant and Patient A, that could not have justified the appellant’s refusal to examine Patient A and give consideration to receiving her as a patient, nor could it justify a refusal to take clinical responsibility for her, or taking the view that admission was unnecessary without having undertaken any examination or assessment of Patient A. These were serious and significant allegations which the MPT was in my view entitled to find proved in 2011 on the basis of the evidence that they received. I see no reason for any departure from those conclusions as a consequence of the new material which has now been provided.[41]It follows from these conclusions that I am entirely satisfied that the principles of issue estoppel apply in relation to the appellant’s Ground 1, and the new material which the appellant has brought before the Court does not justify any disturbance of the MPT’s findings. Having, for the sake of completeness, considered that material I do not take the view that the MPT’s conclusions were wrong and having considered the evidence which the MPT had I am satisfied that their conclusions were sound.

Ground 2: the legal principles and the appellant’s case

[42]As set out above the appellant’s Ground 2 is that the sanction of erasure which was imposed upon him was unduly harsh and unnecessary and therefore wrong. The principles of the Court’s approach to an appeal in relation to a sanction imposed in these circumstances is well settled. The task of the Court is not to re-sentence an appellant, but rather to examine whether applying CPR 52.11(3) the decision of the MPT was wrong. There is no suggestion of procedural or other irregularity in relation to this part of the case.[43]In support of his appeal the appellant contends that the impact of these proceedings upon his life has been profound. His career as a senior psychiatric consultant was ruined and he was forced to retire. He relies upon the fact that he commanded a great deal of professional respect as a person who was engaged in the teaching and instruction of students. He has a distinguished academic record. He submits that the difficulties which he has experienced in recent years in relation to his ill health has caused him considerable difficulties in undergoing any additional training. In the light of all of these circumstances and his previously distinguished career the appellant submits that the sanction of erasure was draconian and wrong.[44]I have set above the conclusions which the MPT reached in determining that the appellant should be erased. Whilst I do not in any way underestimate the serious impact that erasure will have upon the appellant in the light of all of the matters which I have set out above, and which were not gainsaid by the respondent, the difficulty that he faces is that his case has been before the tribunal, and a period of suspension imposed, on three separate occasions. On each of those occasions it was clear and obvious to the appellant that the suspension had been imposed so as to give him the opportunity to obtain insight and remediate himself, and on each occasion he failed to take any steps to do so. I am in no doubt that that was because of the appellant’s continuing inability to come to terms with the conclusions which had been reached by the MPT in 2011. His failure to do so was, for the reasons which I have set out above in relation to Ground 1, essentially misconceived.[45]The appellant’s approach to the previous suspensions and their conditions in my view led to significant consequences in relation to the question of sanctions when that arose for consideration before the MPT on 1st June 2016. The appellant presented as someone who had taken no steps at all to seek to address the findings of impairment that had previously been made by the MPT, and who had not taken any steps to address the need to remediate himself. Secondly, in these circumstances the MPT panel were left with little alternative other than to impose the sanction of erasure. Their reasons are in my view clear and justified. Their finding that there was a “persistent lack of insight into the consequences of what was found proved” and the absence of progress which had been made during the extensive period of suspension which the appellant had been under were entirely valid. As a consequence their conclusion that any further period of suspension would serve no useful purpose was appropriate. In the circumstances, therefore, I am satisfied that there is no substance in the appellant’s appeal under Ground 2.

Conclusions

[46]For the reasons which have been set out above both of the appellant’s Grounds of appeal in relation to this case must be dismissed.

Cited in 1 later judgment